/Policies and guidelines/Managing concerns with performance policy

Managing concerns with performance policy

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Policy owner: People advisor
Corporate lead: Director of people, OD and system development
Date approved by Joint Negotiating Consultative Forum(JNCF): September 2024
Date ratified by Trust Leadership team: September 2024
Date issued: February 2025
Next review date: November 2028

Executive summary

This policy sets out Leeds Community Healthcare (LCH) NHS Trust’s approach to managing concerns with employee performance.

The policy has been drafted to comply with statutory requirements, professional codes of conduct and following ACAS guidance. This should be read together with other relevant trust policies, procedures and local guidance.

This policy applies to all employees of LCH excluding “workers” such as staff employed on an honorary contract or through an agency for which the responsibility rests with the individual’s statutory employer.

This policy has been developed in consultation with staff side and management side representatives, and other key stakeholders.

The policy and procedure may be reviewed at the request of management or staff Side by giving four weeks’ written notice with reasons for the review.

This policy may affect your pensionable pay and could impact on your pension. Please refer to NHS Pension agency or (0113) 2066222.

Equality analysis

LCH NHS Trust’s vision is to provide the best possible care to every community. In support of the vision, with due regard to the Equality Act 2010 General Duty aims, an equality analysis has been undertaken on this policy (see appendix B).

1. Introduction

LCH has committed through its vision “to provide the best possible care in every community”. In order to achieve this vision LCH will ensure that it recruits, retains and develops the best staff and engages and empowers them to achieve and maintain high standards of work.

It is recognised that comprehensive recruitment and selection, an appropriate level of induction, effective appraisal and appropriate training and development will help minimise the risk of poor performance ensuring staff are fully aware of the level of performance expected.

Managers are fundamental to ensuring these activities are effectively managed and maintained.

An effective performance management process is essential to the on-going success of the organisation as is full engagement and participation with the appraisal process.

2. Aims and objectives

LCH will aim to ensure all staff clearly understand the standards of performance expected of them and are fully supported to achieve and maintain these to a high standard.

The primary aim of the procedure is to provide a supportive course of action for employees whose performance falls below the expected standard.

If it becomes apparent that an employee is not achieving the required level of performance this policy and procedure aims to enable managers to deal with the situation in a prompt, constructive and effective manner.

3. Definitions

For the purpose of this policy and procedure poor or unsatisfactory performance is defined as:

“Where a member of staff is failing, in a significant or persistent way, to carry out their responsibilities or duties in a satisfactory manner, either due to lack of skills, knowledge, attitude or some other reason.”

4. Scope

This policy does not replace the trust’s appraisal policy and procedure for staff which is a continuous development process and must take place throughout the year.

Where poor or unsatisfactory performance is considered to be due to unwillingness to carry out duties properly rather than an inability to do so, it is appropriate to follow the disciplinary policy and procedure.

Where poor or unsatisfactory performance is due to ill health, the managing sickness absence policy and procedure will be applied.

If an individual’s home or other personal circumstances are impacting on their ability to perform effectively in the job, consideration should be given to whether changes to work arrangements can be facilitated without compromising service requirements.

Where the circumstances of a particular situation suggest a combination of factors, such as conduct and poor or unsatisfactory performance, the principal reason for action should be selected and the appropriate procedure used. The use of this procedure does not preclude the use of another procedure when it becomes appropriate.

5. Responsibilities

5.1 Joint responsibility

Good working relations are vital for the trust to operate successfully and provide its essential services. Management, trade unions and employees accept the responsibility of working together on performance issues in good faith and with goodwill with the shared intention of facilitating good working relations.

5.2 Management responsibility

The manager will:

recruit new members of staff, and ensure that they are fully aware of their role and standards expected of them in terms of performance from the outset and for ensuring they are adequately trained, qualified and experienced for the jobs they are employed to perform
agree standards of performance which are written using SMART principles, specific, measurable, achievable, realistic and timely, and ensure that these are communicated effectively
ensure new members of staff attend the corporate induction and provide a comprehensive local induction programme to ensure that employees are clear about the aims of the organisation and department and the standards expected of them
discuss and agree with the employee any changes to job role, as appropriate
retain appropriate documentation to record training and development to ensure that adequate training has been given prior to an employee undertaking a specific task
conduct 1:1’s, 6 monthly reviews and annual appraisals in line with the appraisal policy and procedure
provide support, encouragement, training, development and assistance to enable employees to reach and maintain the required standard
ensure that each individual employee has regular feedback on their performance and behaviour and ensure feedback mechanisms within the team exist
highlight concerns with performance informally when they arise in line with the appraisal policy and procedure, in order that the matter may be resolved, and the necessity for taking formal action may be avoided. This discussion will be
documented using the appraisal letter (appendix 2 of the appraisal policy and procedure) and follow up key points made in writing to clarify performance issues and actions to be taken
work in partnership with the Workforce department and employee representatives to ensure that all performance issues are dealt with fairly and consistently
take specific action as required to facilitate disabled employees (as defined by the Equality Act 2010) in meeting performance standards, by making reasonable adjustments to working conditions and work patterns as appropriate taking in to
account the Equality and Human Rights Commission (EHRC) Employment Code.

5.3 Employee responsibility

The employee will take personal responsibility for:

ensuring that they are aware of the standards expected of them, and ask for assistance, training, guidance and support where required to enable them to achieve and maintain the required standards
aiming to achieve a high standard of performance as individuals and to contribute effectively to the team where appropriate
participating and engaging with the appraisal process
informing their manager (or appropriate third party, for example, human resources or employee representative) of any job related or personal issues that may be preventing them reaching the agreed standards, in order that support and assistance may be provided
contributing to any discussions about their performance and participate fully in any reasonable action plans aimed at performance improvement
understanding that if work performance falls below expected levels managers are obliged to address this
complying with appropriate codes of conduct and trust policies.

5.4 Workforce responsibility

The Workforce department will:

work in partnership with managers and employee representatives to ensure employees are treated fairly and consistently within the framework of the policy
assist managers to facilitate an employee’s return to the required standard of performance by providing advice and support as appropriate
advise managers of options available should an employee be unable to achieve the agreed performance standard
collate and report equality data collection and subsequent analysis to the SMT as part of the workforce report and contribute to the Public Sector Equality Duty (PSED) information.

5.5 Trade union responsibility

The trade unions play a vital role in:

supporting members in the formal stages of the process
representing members in the procedure and providing support and advice
working in partnership with management, the workforce department and occupational health to ensure employees are treated fairly and consistently.

6. Right to be accompanied

An employee has the statutory right to request to be accompanied by a supporter in any formal performance meeting or hearing. The supporter may be a work colleague not acting in a legal capacity, an accredited trade union representative or an official employed by the employee’s trade union.

Nothing in this policy will affect the right to any reasonable adjustments needed to help the employee or their supporter, for example, foreign language interpretation where either the employee or the supporter has difficulty understanding or communicating in English. This may be in addition to a trade union representative or official.

Any request to be accompanied must be reasonable. The employee should let the workforce department know if they are being supported or represented by a trade union or professional body representative as soon as is practicable if a hearing is to take place, as well as the name of the supporter.

The employee is responsible for involving their supporter initially, and ensuring that dates of hearings are passed on to the supporter. Once a supporter is identified, they should normally be included in all correspondence with the employee, either in hard copy or electronically.

It is the responsibility of the employee to ensure that any case materials are prepared, sent and received within the timescales contained in the policy. Making such arrangements should not cause undue delay to the process as it is in everyone’s interests to proceed promptly.

If the supporter is unavailable at the date and time of the hearing, the supporter and employee can suggest an alternative date or time provided a) the reason the supporter is unavailable is reasonable, b) all panel members are available on the proposed date or time.

This should usually be within seven working days of the original date, although in exceptional circumstances this may be extended by mutual agreement.

The role of the supporter in any hearing is to assist and support the employee. The supporter is allowed to present the employee’s case, sum up the employee’s case, and respond to any view expressed on the employee’s behalf. They should also be given the opportunity to ask questions of presenting managers and witnesses on the employee’s behalf. The supporter is also entitled to time out to confer with the employee during the hearing as needed. The supporter may not answer questions on behalf of the employee, disrupt the process, or prevent the Trust from explaining their case. The supporter is not allowed to address the panel if the employee does not wish them to do so.

7. Application of the procedure

In handling issues with performance under this policy, the informal and formal stages will normally be followed sequentially. However, there may be circumstances in which it is necessary to omit one or more stages, according to the severity of the shortcomings, mistakes, or errors identified, for example, patient safety, health and safety or repetition of previous performance issues dealt with informally. This will only be done with advice from human resources.

If the employee is unable to sustain the level of competence required following completion of one of the stages the employee will return to the process at the next stage:

Previous stage	New stage
Informal stage	Formal stage
Formal stage	Final hearing

This procedure should only be applied once circumstances or factors directly within the control of managers have been eliminated as contributing factors to a level of performance below that which might be expected. Examples of such factors might include:

recent significant amendments to a job description
recent introduction of new systems or technology
employees in their induction period

Consideration should be given to involving appropriate expert or professional advisors, for example, quality and professional development (QPD) department where jobs incorporate highly technical aspects or elements that are not familiar to the manager.

8. The procedure

8.1 Informal stage

Where performance issues are identified the manager should provide feedback in a timely manner and as close to the issue or incident as possible, ideally addressing issues as part of the appraisal process. This should enable the employee to make the necessary changes to their practice and demonstrate learning and improvement.

Feedback should be routine and forms the basis of the trust’s appraisal policy and procedure whereby employees should be made aware at the earliest opportunity that there is a problem with their work.

If it becomes evident that an individual’s performance is not meeting the required standard the manager may need to escalate the issues from the appraisal process to the informal stage of this procedure to explore the reasons in more detail and establish appropriate support and (or) training.

The employee will be invited to the informal meeting by email or letter (including a copy of the policy) by the manager ensuring a record is kept of any correspondence.

At an informal stage meeting the manager will talk to the employee and draw their attention to the concerns, providing objective, factual evidence of poor performance. For example, this could be when objectives, competencies and performance targets set as part of the appraisal process have not been achieved, failing to follow local processes and procedures, work schedules, complaints received.

The manager should try to ascertain from the individual’s responses if he or she accepts that there is a problem with their performance and assess the importance of any mitigating circumstances.

Wherever possible, the manager and employee should jointly identify:

the underlying cause
an action or development plan (appendix A) that the employee must follow (this may include specific on the job training, shadowing, mentoring and coaching)
a timescale to overcome the problems (usually between 4 to 8 weeks, agreeing the timescale with the nature of the concerns and complexity of the post)
what support is available, for example, counselling and reference made to the following policies if appropriate, special leave, alcohol policy, flexible working
regular review periods

The review period will be a maximum of 8 weeks and will start once the employee has received the agreed action or development plan.

The manager must provide the employee with a copy of the action or development plan agreed and any agreed actions from the meeting within 5 working days of the meeting.

The manager should ensure the employee is aware that failing to meet the required standards within the agreed timescale may mean that formal action will need to be taken in the future. The review period set at the informal stage may be shortened if serious problems arise during it.

It will be necessary to make reference to earlier informal discussions; therefore managers must keep a record of the date, time and content of all initial discussions.

Dependent upon discussions with the employee, it may be appropriate to deal with the matter under another procedure, for example:

attendance management
disciplinary
acceptable standards of behaviour
alcohol and drug misuse

There should be a final review meeting at the end of the agreed review period to establish progress made and any further improvements required.

Options available following this meeting are:

If it is established that performance has improved to the required standard, the individual must be informed that there will be no further action taken under this procedure and that their performance will continue to be monitored in the normal way using the appraisal process.
If performance has improved but is not yet consistent a further review period may be agreed (usually between 4 to 8 weeks, agreeing the timescale with the nature of the concerns and complexity of the post).
If it is determined that performance has not reached the required standard in the agreed timeframe or there is repetition of previous performance issues dealt with under the informal stage, the formal stage of the procedure must be instigated.

The outcome must be communicated verbally at the meeting and confirmed in writing within 5 working days of the meeting.

Where the decision is to move to the formal stage of the procedure, the manager must inform a HR representative.

8.2 Formal stage

If the informal stage is unsuccessful in assisting the employee to meet the required standard of performance and there is no other cause identified, the manager should escalate the issues to the formal stage of the procedure taking advice from a HR representative.

The manager will write to the employee to arrange a meeting, giving at least 5 working days’ notice of the date, time and venue.

The letter must clearly state:

any informal agreed actions (action plan) and timescales
details of where the employee has not met the required standard
their right to representation.

The manager, a HR representative, the employee and the employee’s representative, if appropriate, will attend the meeting.

At the meeting the manager must:

review the original action or development plan highlighting the areas that remain a concern and amend where necessary
ensure the plan sets out how the employee’s performance will be monitored, and what type of supervision or support will be provided during the period under review
set new timescales to allow sufficient time to reach the required standard. This would usually be between 4 to 8 weeks, agreeing the timescale with the nature of the concerns and complexity of the post
allow the employee the opportunity to respond and bring to the manager’s attention issues that may be affecting their performance
ensure the employee is aware of the consequences of failing to meet the required standard, which will be to move to the next stage of the procedure and could ultimately lead to dismissal.

The manager must conduct regular reviews (every 2 weeks or sooner if appropriate).

The manager must provide the employee with a copy of the revised action or development plan agreed and any agreed actions from the meeting within 5 working days of the meeting.

There must be a final review meeting at the end of the agreed review period to establish progress made and any further improvements required.

Options available following this meeting are:

If it is established that performance has improved to the required standard, the individual must be informed that there will be no further action taken under this procedure and that their performance will continue to be monitored in the normal way using the appraisal process.
If the employee has almost met the required standard, a further review period may be agreed (usually between 4 to 8 weeks, agreeing the timescale with the nature of the concerns and complexity of the post).
If the required standard of performance is not reached the manager may consider (with the agreement of the employee) down grading should a suitable vacant post exist within their service or the wider organisation exist, ensuring it is made clear where on the lower pay band the individual will move to.
Discuss redeployment options in the wider organisation if appropriate, for roles more suitable to the employee’s skills and abilities.
If it is determined that performance has not reached the required standard in the agreed timeframe; or if no suitable vacancy exists; or the employee does not agree to downgrade or redeployment option and no mitigating circumstances exist the matter will progress to a final hearing.

The outcome must be communicated verbally at the meeting and confirmed in writing within 5 working days of the meeting.

8.3 Timescales

The 4 to 8 week review periods at both the informal and formal stage are indicative and based on facts of individual circumstances, nature of the concerns and complexity of the post.

8.4 Final hearing

If the formal stage is unsuccessful in assisting the employee to meet the required standard of performance it will be necessary to convene a final hearing.

A panel will be formed consisting of an (a) appropriately trained independent senior manager (Chair) and a HR representative to hear the case, neither of which have had any prior involvement.

It is expected that the final hearing will be convened within 25 working days of notification of progression to the final stage. Any delay in setting up the hearing within the specified timescale should be communicated to all parties at the earliest opportunity.

The nominated HR representative will send a letter confirming the arrangements for the hearing and possible outcomes to the employee giving at least 10 working days’ notice of the hearing.

Attached to the letter will be the management case (prepared by the manager) for the hearing which will include:

a chronology of the informal and formal stages
details of the performance issues with evidence
action or development plans developed and outcomes

The employee may also produce a statement of case including any relevant material to support their case which should be provided to the HR representative 5 working days prior to the hearing.

The employee case will be presented to management side 4 working days prior to the hearing.

The employee and management case will be presented to the panel 4 working days prior to the hearing.

Where failure to attend the hearing is with prior notice and the reason given for non-attendance is reasonable, for example, sickness, the hearing will be reconvened. The employee can suggest an alternative time and date provided it is reasonable, other panel members are available and it is not more than seven working days after the original date.

Where failure to attend is not notified prior to the hearing the nominated HR representative will write to the employee requesting a reason for their non-attendance. The hearing will be reconvened at a date and time that is suitable for the
panel members.

If the reconvened hearing is not attended by the employee or their nominated representative the hearing may proceed in their absence.

Where failure to attend is due to sickness absence from work an occupational health referral may be required to advise if the individual is fit to attend the hearing.

8.5 Dismissal, downgrading or redeployment

People authorised to dismiss, downgrade or redeploy are as follows:

Chair and non-executive directors of the trust board
Chief executive and executive directors of the trust board or senior staff (general managers, clinical leads, associate medical directors) directly employed by the trust who report directly to the executive director.

If there are concerns with an individual’s professional performance, then an independent specialist advisor may also be available to advise the panel, although they will not be part of the decision making process.

The chair of the final hearing must have received the appropriate training for this role.

The independent senior manager will chair the hearing. They will introduce those present and the hearing will proceed usually as follows:

the information will be set out by the manager, who will then present the report
the panel may question the manager
the employee or representative may question the manager
the employee or employee representative will be given the opportunity to explain to the chair of the final hearing why they have been unable to reach the required standard of performance, including any mitigating circumstances
the panel may permit questions of the employee by the manager and may ask questions
the employee or employee’s representative will be given the opportunity to summarise their case
the manager will be given the opportunity to summarise their case
the panel considers the case in private. The panel must be satisfied that they have all the relevant information and advice required to make a decision. If this is not the case an adjournment may be requested by agreement.

The options available are:

In exceptional circumstances, the employee may be given a further review period to meet the required standard. At which point the panel will reconvene to rehear the outcome of the extended review period and make a final decision.
Redeploy the employee in to a more suitable vacant post (only if there is a suitable vacancy).
Where redeployment is not an option, the employee will be dismissed from their employment on the grounds of capability. The employee will be entitled to receive pay in lieu of notice, in accordance with their contract of employment, and pay in lieu of any outstanding annual leave.

The panel will aim to inform the parties of the decision on the day (under exceptional circumstances and by agreement the outcome may be given at a later date).

The panel will confirm the decision in writing to the employee or representative within 5 working days of the hearing. The letter will set out the decision and reasons for it and notify the employee of the right of appeal.

8.5.1 Redeployment

Where there is a possibility of redeployment to a suitable vacant post within the organisation the employee must be given a period of 10 working days to consider the offer. The employee must be made aware in these circumstances, where the post is
on a lower band pay protection will not apply, and that refusal of a suitable vacant post will normally result in their dismissal. The employee must convey their response in writing to the chair of the hearing within the specified timescale.

9. Right to appeal

Employees have the right of appeal against the outcome of a final performance hearing. In wishing to exercise this right, the employee should write to the director of workforce within fifteen working days of the date of the letter confirming the decision.

Appeals will be dealt with in accordance with the trust’s appeal policy.

Note: All records and reports received or created by the performance panel should be forwarded to the relevant HR representative at the end of the process.

10. References

NHS Terms and Conditions
ACAS
NHS Constitution
Equality Act 2010
EHRC Employment Code

11. Monitoring compliance and effectiveness

The Workforce department will provide reports on the number of performance cases as part of the employee relations monitoring data.

12. Approval and ratification process

This policy will be approved by the JNCF and ratified by the trusts’ remuneration committee.

13. Dissemination and implementation

Following ratification this policy will be available to all staff via the trust intranet site.

A short summary of its contents will also be published with a further notification appearing in Community Talk.

14. Associated documents

Managing attendance policy and procedure
Disciplinary policy and procedure
Appraisal policy and procedure
Bullying and harassment policy
Records management policy
Employee records: Guidance for managers

13. Appendices

13.1 Appendix A Action and development plan

Action and development plan

13.2 Equality analysis

Equality analysis

13.3 Managing concerns with performance procedural flowchart

Performance issues identified
Discuss as part of appraisal process
- Improvement (standard reached and monitored in line the appraisal process)
- No improvement (not reached required standard)
  - Informal stage
  - Manager and employee develop action plan
  - Timescale for improvement agreed (4 to 8 weeks). Further review 4 to 8 weeks, if needed
  - Meet to review. No improvement or repetition of previous performance issues
  - Formal stage
  - Meeting to review action plan and develop where appropriate
  - Timescales for improvement agreed (4 to 8 weeks). Further review 4 to 8 weeks.
  - Manager to review every 2 weeks or sooner if appropriate
  - Final formal meeting to review. No improvement and repetition of previous performance issues. Further review 4 to 8 weeks.
  - Downgrading or redeployment
  - Final hearing
  - Appeal